On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4973-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 30, 2009
Before Judges Cuff, Baxter and King.
Plaintiff Mary Patterson*fn1 was injured while shopping at a T.J. Maxx store. A jury awarded her $20,000 in medical expenses, $200,000 for lost income, and $275,000 for pain and suffering.*fn2 The jury awarded plaintiff's husband John Patterson $25,000 for his per quod claim. In its appeal, defendant*fn3 argues that the lost wage and medical expenses awards are against the weight of the evidence, that the trial judge erred in molding the medical expense award, and that the trial judge should have granted its motion for a new trial on damages. We affirm in all respects except the treatment of the medical expense award.
On August 29, 2003, plaintiff and her daughter, Margaret Caruso, were shopping at defendant's T.J. Maxx store in Paramus. Plaintiff had leaned over to inspect a piece of luggage on display on the store floor. Directly behind plaintiff was a triangular display on which hung framed wall art. While plaintiff was bent over, she heard a noise "like things hitting against each other" and then immediately felt an object strike her back with such force that she fell to the floor on her hands and knees and struck her head on a piece of luggage. Plaintiff noticed small pieces of the artwork lying on the floor around her.
Plaintiff was unable to move and felt "dazed." Other shoppers removed the object from plaintiff and then she rose from the floor. Defendant's employees sat plaintiff in a chair and provided ice for her pain.
Plaintiff then accompanied her daughter home. Plaintiff experienced "shooting pains" through the afternoon and evening. The next morning, plaintiff went to Hackensack University Medical Center Emergency Room, where she received injections of pain medication. Plaintiff then returned to her home.
After the accident, plaintiff continued to experience pain. Within a few days of the accident, plaintiff sought treatment from a chiropractor, Dr. Marc Snyder. He treated plaintiff three to four times per week for approximately eighteen months. Concurrently, plaintiff underwent physical therapy at another facility for approximately three to four months after the accident.
In April, 2004, plaintiff's chiropractor referred her to an orthopedist, Dr. Barry Simmonson, to treat her persistent right shoulder pain. Dr. Simmonson injected steroids into the back of plaintiff's shoulder. She reported the steroids alleviated the pain for "a short period of time." Dr. Simmonson recommended plaintiff undergo surgery for a tear in her shoulder. At the time of trial, plaintiff remained undecided about the recommended surgery.
A few months later, Dr. Snyder referred plaintiff to a neurologist, Dr. James Liguori, for "severe headaches." Plaintiff described the headaches as "shoot[ing] up from [her] shoulders into [her] head continuously." Dr. Liguori treated plaintiff with two sets of two "trigger-point injections." Plaintiff reported the shots alleviated the headaches, but "after a while [the pain] starting coming back, easing back again."
By early 2005, plaintiff complained of back pain so severe that she had to sit in a chair and apply ice to her back on a "nearly constant" and daily basis. Plaintiff also complained of headaches and shoulder pain. Plaintiff described the pain in her shoulder as so severe that she "would almost pass out" if she moved it the wrong way.
In March 2005, plaintiff's primary physician, Dr. Guzman referred plaintiff to a new orthopedist, Dr. Paul Kuflick, because of plaintiff's continued pain. Dr. Kuflick examined plaintiff and recommended a spinal fusion of her lower back to alleviate the pain. Plaintiff, wishing to avoid surgery, sought a second opinion from Drs. Katzman and Morala. Drs. Katzman and Morala cautioned plaintiff about the risks of surgery, including a risk that plaintiff could be paralyzed. Plaintiff elected not to undergo surgery.
Drs. Katzman and Morala referred plaintiff to a pain management specialist, Dr. Barry Mann, who prescribed plaintiff pain medication. Plaintiff reported the pain medication made her unable to stand up for an entire day. Plaintiff was also treated by another pain specialist, Dr. Alexander Lee, for back pain. Dr. Lee treated plaintiff with two or three injections ...